Tan Sri David Chiu Tat-Cheong

[2023] 6 CLJ v. Seema Elizabeth Soy 51

A TAN SRI DAVID CHIU TAT-CHEONG

v. SEEMA ELIZABETH SOY
COURT OF APPEAL, PUTRAJAYA
HANIPAH FARIKULLAH JCA
AZIZAH NAWAWI JCA
B
S NANTHA BALAN JCA
[CIVIL APPEAL NO: W-02(W)-1320-07-2021]
31 MARCH 2023

Abstract – In a statement or text made by an individual, the omission

C
to paint the full picture is the very nature and essence of the concept of
‘half-truth’ which establishes liability for defamation in circumstances
where the failure to present the requisite information portrays a false
impression in the minds of the ordinary person. The publication of a
‘half-truth’ can constitute a false statement.
D

TORT: Defamation – Impugned text – Publication of ‘half-truth’ – Whether

constituted false statement – Element of malice – Whether demolished defence of
qualified privilege and fair comment – Whether impugned text defamatory –
Whether maligned reputation – Whether impression created by impugned text one
E
of utter falsity – Whether defence of justification failed – Whether impugned text
widely circulated – Whether damages of RM100,000 fair and reasonable to vindicate
reputation sullied by impugned text
This was an appeal against the decision of the High Court wherein the
F
appellant’s (‘plaintiff’s) suit for defamation (‘suit’) was dismissed after a full
trial. The plaintiff was the chairman and founder of Malaysia Land
Properties Sdn Bhd (‘Mayland’) which developed Waldorf & Windsor
Towers Service Apartments (‘W&W’). The respondent (‘defendant’) was a
unit owner of property at W&W and was, at various points in time, a
committee or sub-committee member of the W&W Management
G
Corporation (‘MC’). Mayland and the MC were involved in several legal
actions. W&W was involved in the suits (‘Mayland litigation’) where various
issues and matters between W&W and Mayland, its related entities or
individuals connected to the Mayland group were litigated or were in the
midst of litigation. The defendant and 55 other unit owners were part of a
H WhatsApp group. The WhatsApp was the platform to enable unit owners to
disseminate and discuss all matters and issues of and concerning the MC and
in particular, matters concerning the MC’s legal disputes with Mayland and
its associates. The gravamen of the plaintiff’s complaint was that the
defendant had defamed him and injured his reputation as a businessman of
I international repute by publishing a ‘half-truth’ via a text message in the
WhatsApp group. The impugned text message contained serious allegations
which were directed at Mayland, the plaintiff and his family members and
52 Current Law Journal [2023] 6 CLJ

the Chiu family. There was no dispute that sometime in the 1980s, the A
plaintiff and his father were arrested and charged for offences involving
financial misconduct in Hong Kong. Later, around 1996, the plaintiff and his
father were ‘acquitted.’ These facts were in the public domain. The plaintiff
pleaded that the impugned text sent by the defendant, in its ordinary and
natural meaning, meant that the plaintiff was, inter alia, a fraudster, was B
dishonest and untrustworthy and had been of convicted of fraud and had
served jail time. The plaintiff prayed for, inter alia, damages of RM1.5
million or general damages including aggravated damages to be assessed. The
defendant’s defence was that the impugned text was not defamatory of the
plaintiff. If it was defamatory, the defendant pleaded that (i) the impugned C
text was justified and/or based on information that was available in the
public domain; (ii) made in good faith, not in malice; (iii) made as a matter
of fair comment in the interest of the participants of the WhatsApp group
and/or that it was published on an occasion of privilege and for the benefit
of the participants in the WhatsApp group. The defendant maintained that
D
her focus was on Mayland and that the words in the impugned text referring
to the plaintiff were true as the plaintiff himself had, in the past, been arrested
and charged for criminal offences, which was publicly reported in the press
which was used by the defendant as the source of her text. The defendant
pleaded the defence of justification, qualified privilege and fair comment.
The JC, in dismissing the plaintiff’s suit, held that the impugned text was not E
defamatory and that there was a need to raise awareness and for the W&W
owners to be informed of the ‘players’ in the Mayland litigation. Hence, this
appeal.
Held (allowing appeal)
F
Per S Nantha Balan JCA delivering the judgment of the court:
(1) The defendant was fully aware that the plaintiff was ‘acquitted’ of the
charges of financial misconduct and that these events occurred at least
two decades ago. There was no rhyme or reason for the defendant to
have ‘raked’ up the plaintiff’s past in connection with the arrest and G
charge, which ultimately resulted in an acquittal. The defendant was
fully aware that the plaintiff had been acquitted of the charges involving
financial misconduct but she chose not to disclose this to the participants
in the WhatsApp group. She painted only ‘half’ the picture. Therein lay
the element of malice on the defendant’s part. The non-disclosure of the
H
plaintiff’s acquittal was deliberate and this was hardly ‘fair’ to the
plaintiff. The defendant had displayed an indifferent attitude which
significantly warranted an inference of malice. In the circumstances, the
finding of malice on the defendant’s part demolished the defence of
qualified privilege and fair comment. (paras 30-33)
I
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 53

A (2) The facts pertaining to the arrest and charge against the plaintiff were
carefully juxtaposed with the judicial findings of fraud and
misrepresentation against Mayland and this was a clear and
unmistakable invitation to the participants of the WhatsApp group to
equate the plaintiff with Mayland, and to reasonably form the view that
B the plaintiff was dishonest and a fraudster with a criminal heritage. The
impugned text was circulated on 17 August 2018 when the plaintiff’s
arrest (and that of his father) took place in the late 1980s and both were
acquitted in 1996. These were facts which were in the public domain
and were known to the defendant before she sent the impugned text. The
C
impugned text as a whole gave the clear impression that the plaintiff was
guilty, liable for, or predisposed to dishonesty, fraud or
misrepresentation. Therein lay the ‘sting’ of the impugned text. The
impugned text here was not ‘mere reporting.’ Rather, it was a well
scripted text with a clear purpose to impugn the plaintiff’s reputation so
that the participants of the WhatsApp group form the view that the
D
plaintiff and Mayland were one and the same and that just as Mayland
was found liable for fraud and misrepresentation, the plaintiff too was
dishonest and a fraudster as he had been arrested and charged with
offences involving financial misconduct. (paras 36, 37, 48 & 54)

E
(3) Whilst it was legitimate for the defendant to discuss Mayland’s conduct,
behaviour, misconduct or other unlawful activity, the action of the
defendant to equate the plaintiff with Mayland and ascribe or impute
Mayland’s wrongful conduct to the plaintiff by reason of his previous
arrest and criminal charge, of which he was acquitted and which was not
mentioned in the impugned text, rendered the impugned text to be
F
inherently and egregiously defamatory of the plaintiff. The defendant
had knowledge or means of knowledge that the statement she made
about the plaintiff was only a half-truth. What the defendant did was
merely to insert a so-called ‘disclaimer’ at the end of the posting by
asking the recipients to ‘Google’ these names to read more. This is
G nothing more than posting a half-truth and asking the readers to look out
for themselves, the other half on Google. The disclaimer did not give
the defendant a free pass such that it exonerated her from liability for
having defamed the plaintiff. The omission to paint the full picture was
the very nature and essence of the concept of ‘half-truth’ which
H established liability for defamation in circumstances where the failure to
present the requisite information portrayed a false impression in the
minds of the ordinary person. (paras 62-66)
(4) Firstly, the defendant failed to give the full picture of the plaintiff’s
previous legal problems in Hong Kong, and secondly, the plaintiff’s
I previous legal problems in Hong Kong being juxtaposed with the judicial
findings of fraud and misrepresentation against Mayland gave the false
impression that the plaintiff was a fraudster and was dishonest. Thirdly,
54 Current Law Journal [2023] 6 CLJ

there was no legitimate reason or justification for making any reference A

to the plaintiff in the impugned text. It was done for the obvious purpose
of highlighting Mayland’s unlawful conduct and to equate the plaintiff
with Mayland, and in the process to malign the reputation of the
plaintiff. Even if the fact that the plaintiff was previously arrested and
charged was true, the defence of justification failed as the impression B
created by the impugned text was one of utter falsity. The mere mention
of the plaintiff’s name in the impugned text and juxtaposing the
plaintiff’s name together with the judicial findings of fraud and
misrepresentation against Mayland had the effect of tarnishing the
plaintiff’s reputation. The plaintiff was defamed because the words used C
in the impugned article which referred to the plaintiff’s arrest and charge
had taken a sinister colour by being associated with the other words in
the same impugned text relating to Mayland. (paras 67-70)
(5) The impugned text was circulated to a limited group – within the W&W
WhatsApp group. Since the administrator of the WhatsApp group had D
administered a rebuke to the defendant about ten days after the
impugned text was circulated, it might be presumed that it was or may
have been deleted. At any rate, there was no evidence of any
‘re-publication.’ Taking all circumstances into account, the plaintiff was
not entitled to RM1.5 million damages as pleaded. Considering the E
plaintiff’s status as an international businessman and that the impugned
text was not widely circulated, damages in the sum of RM100,000
would be fair and reasonable to vindicate the plaintiff’s reputation which
had been sullied by the impugned text. (para 72)
Case(s) referred to: F
Cimolai v. Hall [2005] BCSC 31 (refd)
Dato’ Seri Anwar Ibrahim v. The New Straits Times Press (M) Sdn Bhd & Anor
[2010] 5 CLJ 301 HC (refd)
Dato’ Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor
[2014] 3 CLJ 560 CA (refd)
Goldsmith v. Sperrings Limited [1977] 2 All ER 566 (refd) G
Horrocks v. Lowe [1975] AC 135 (refd)
JB Jeyaretnam v. Goh Chok Thong [1984] 1 LNS 139 (refd)
Lewis v. Daily Telegraph Ltd [1964] AC 234 (refd)
Lim Guan Eng v. Utusan Melayu (M) Bhd [2012] 2 CLJ 619 CA (refd)
Malaysia Land Properties Sdn Bhd v. Waldorf & Windsor Joint Management Body
H
[2014] 6 CLJ 821 CA (refd)
MD Mineralsearch Inc v. East Kootenay Newspapers Ltd 209 DLR (4th) 375 (refd)
S Pakianathan v. Jenni Ibrahim & Another Case [1988] 1 CLJ 771; [1988] 1 CLJ (Rep)
233 SC (refd)
SB Palmer v. AS Rajah & Others [1947] 1 LNS 94 HC (refd)
Sivabalan P Asapathy v. The New Straits Times Press (M) Bhd [2010] 7 CLJ 885 HC (refd)
I
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 55

A Tan Sri David Chiu Tat-Cheong v. Seema Elizabeth Isoy [2021] 1 LNS 1162 HC (refd)
The Citizen 1978 (Pty) Ltd v. McBride [2011] 5 LRC 286 (refd)
Tun Datuk Patinggi Hj Abdul-Rahman Ya’kub v. Bre Sdn Bhd & Ors [1995] 1 LNS 304
HC (refd)
V Radhakrishna v. Alla Rama Krishna Reddy 2019 Cri LJ 302 (refd)

B Legislation referred to:

National Land Code, s. 340
Rules of Court 2012, O. 18 r. 12(1A)
For the appellant - Gopal Sri Ram, Siva Balan Karupiah, Goh Wan Ping, How Li Nee
& Phyllia Lim Xin Yee; M/s Mastura Partnership
For the respondent - Aneera Joshini Chowdhury & Natalie Lu Yiing Suey; M/s AJ
C
Chowdhury

[Editor’s note: For the High Court judgment, please see Tan Sri David Chiu Tat-cheong
v. Seema Elizabeth Isoy [2021] 1 LNS 1162 (overruled).]

Reported by Suhainah Wahiduddin

D

JUDGMENT
S Nantha Balan JCA:
Introduction
E
[1] This is an appeal against the decision of the learned Judicial
Commissioner of the High Court (“the JC”) dated 23 June 2021 wherein
the plaintiff’s suit for defamation per Kuala Lumpur High Court Suit
No. WA-23CY-10-03/2018 (“the suit”) was dismissed after a full trial. The
plaintiff in the suit (appellant before us) is Tan Sri David Chiu Tat-Cheong
F
and the defendant is Mdm Seema Elizabeth Isoy. The JC ordered costs of
RM80,000 (subject to allocator) to be paid by the plaintiff to the defendant.
The High Court’s decision is reported as – Tan Sri David Chiu Tat-Cheong v
Seema Elizabeth Isoy [2021] 1 LNS 1162; [2021] 7 AMR 186 (HC). For
convenience, the appellant and respondent in this appeal shall be referred to
G as plaintiff and defendant respectively.
The Issue
[2] The issue is whether the publication of a “half-truth” can constitute a
false statement. In this regard, at para. [9] of the memorandum of appeal
H dated 17 September 2021, the plaintiff has contended that the JC had erred
“in law and/or in fact in failing to hold that the publication of a half-truth
constitutes a false statement.”
Parties

I
[3] The plaintiff is the chairman and founder of Malaysia Land Properties
Sdn Bhd (“Mayland”) which developed Waldorf & Windsor Towers Service
Apartments (“W&W”).
56 Current Law Journal [2023] 6 CLJ

[4] The defendant is a unit owner of property at W&W and was at various A
points in time, a committee or sub-committee member of the W&W
Management Corporation (“MC”).
Mayland Litigation
[5] Mayland and the MC were involved in several legal actions. W&W B
is and was involved in the following suits (“Mayland litigation”) in which
the opposing parties are Mayland, its related entities or individuals
connected to the Mayland group:
(i) Kuala Lumpur High Court Civil Suit No. 22NCvC-460-2011 between
Mayland and W&W Joint Management Body (“JMB”); C

(ii) Court of Appeal Civil Appeal No. W-02(NCvC)(W)-1150-05/2012

between Mayland and the JMB;
(iii) Federal Court Civil Application No. 08(f)-260-04/2013(W) between
Mayland and the JMB; D
(iv) Kuala Lumpur High Court Civil Suit No. 22NCvC-13-01/2014
between various apartment owners and Mayland;
(v) Kuala Lumpur High Court Civil Suit No. WA-22NCvC-298-06/2017
between a Mayland connected person and the MC;
E
(vi) Kuala Lumpur High Court Civil Suit No. WA-22NCvC-374-07/2017
between the MC and Mayland;
(vii) Court of Appeal Civil Appeal No. W-02(IM)(NCvC)-1918-09/2017
between Mayland connected persons and the MC;
F
(viii) Kuala Lumpur High Court Application for Judicial Review No. WA-
25-323-12/2017 between a Mayland connected person, the MC and
Datuk Bandar Kuala Lumpur; and
(ix) Court of Appeal Civil Appeal No. W-02(IM)(NCvC)-1454-07/2017
between a Mayland connected person and the MC. G

[6] In relation to the Mayland litigation, various issues and matters

between W&W and Mayland, its related entities or individuals connected to
the Mayland group were litigated or are in the midst of litigation, including:
(i) the JMB successfully reclaiming a substantial portion of the 7th floor of
H
W&W from Mayland who had been found guilty of fraud and/or false
misrepresentation in obtaining the title to the same. Mayland was found
to have perpetrated fraud and/or false misrepresentation at the land
office and JUPEM (the Malaysian Department of Survey and Mapping);
(ii) 47 W&W owners initiating a class action against Mayland seeking I
compensation for costs incurred in renovating the unfinished portion of
the 7th floor of W&W;
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 57

A (iii) the MC claiming unpaid contribution of maintenance fees and sinking

fund (approximately RM1 million) against a Mayland connected person
in respect of 414 parking bays linked to one residential apartment unit
at W&W and operated as a commercial car park;
(iv) the MC obtaining an interim injunction to remove proxies of Mayland
B
and its related entities from holding positions in the W&W Management
Committee due to irregularities at the 2017 AGM which contravened
the laws on strata management. Had this injunction not been granted, the
W&W Management Committee would have consisted solely of three
proxies of Mayland and its related entities; and
C
(v) the MC successfully appealing the injunction that had been granted
which had allowed a Mayland related entity to attend the 2017 AGM.
WhatsApp Group
[7] The defendant and 55 other unit owners were part of a WhatsApp
D group. The administrator of the WhatsApp group at the material time was
one Mr Curtis Brinton (“Curtis”). Curtis did not testify at the trial.
WhatsApp was the platform to enable unit owners to disseminate and discuss
all matters and issues of and concerning the MC and in particular, matters
concerning the MC’s legal disputes with Mayland and its associates.
E
[8] It is not in dispute that in one of the legal actions, the High Court made
a finding that Mayland had defrauded and/or made false representations to
W&W owners in respect of a common area in W&W. On appeal, the Court
of Appeal upheld the High Court’s findings. The judgment of the Court of
Appeal is reported as Malaysia Land Properties Sdn Bhd v. Waldorf & Windsor
F Joint Management Body [2014] 6 CLJ 821 (CA). The legal action arose out
of a dispute between MC and Mayland regarding the whole of the 7th floor
of W&W.
[9] Mayland contended that the 7th floor was privately owned by them
and was not part of common property. The MC contended otherwise and
G
sought a declaration that area “A” of the 7th floor which was registered in
Mayland’s name was not indefeasible under s. 340 of the National Land
Code 1965. The Court of Appeal upheld the High Court’s finding that area
“A” of the 7th floor was common property and that Mayland had obtained
the strata title through fraud and/or misrepresentation perpetuated on the
H land office and the Jabatan Ukur dan Pemetaan Malaysia (JUPEM), being
the issuing authority. (See para. 55(k) of the Court of Appeal’s judgment).
[10] Mayland’s leave to appeal to the Federal Court was subsequently
dismissed.
I [11] In 2021, the High Court has made a similar finding against Mayland,
now in respect of 414 carparks which were unlawfully obtained. The matter
is pending appeal at the Court of Appeal.
58 Current Law Journal [2023] 6 CLJ

[12] Hence, it is quite clear that in light of the findings of fraud and A
misrepresentation made by the High Court and Court of Appeal against
Mayland, any suit by Mayland for defamation based on any publication
which attributes fraud and false misrepresentation against Mayland vis-a-vis
the 7th floor of W&W Tower would be an exercise in futility as the suit will
be defeated by the defence of justification. In the present case, there was no B
suit by Mayland for defamation. Rather, the defamation suit is by the
plaintiff who is the chairman and founder of Mayland.
Half-truth
[13] The gravamen of the plaintiff’s complaint is that the defendant had C
defamed him and injured his reputation as a businessman of international
repute by publishing a “half-truth” via a text message in the WhatsApp group.
The impugned text message contained serious allegations which were
directed at Mayland, the plaintiff, his family members and the Chiu family.
There is no dispute that sometime in the 1980s, the plaintiff and his father
D
were arrested and charged for offences involving financial misconduct in
Hong Kong. Later, around 1996, the plaintiff and his father were
“acquitted”. These facts are in the public domain.
Impugned Text
[14] The impugned text message dated 17 August 2018 at 22:15:14 and E
22:16:22 (“impugned text”) is as pleaded:
In order for owners to know all the facts, I believe we have to step back
even more and ask “Who is Mayland?”
Mayland is the CHIU family.
F
So who is this Chiu family?
Let’s have a very brief look at the publicly known facts about this family:
• The Chiu family is an extremely rich and successful family
originating from China, then based in Hong Kong. Now with
business in many countries, including Malaysia. G

I’m always happy for people’s happiness and good fortune but ...
• Deacon Chiu (Sr) has been in the past arrested and charged with conspiracy
to falsify documents of the Far East Bank, where they were the major
shareholders. For plotting to defraud the Commissioner of Banking by making
H
false claims concerning the ownership of companies to which the
bank had made advances of $352.5 million.
• Duncan Chiu (Deacon Sr’s son) has in the past been arrested for
allegedly breaching the Theft Ordinance and the Companies
Ordinance.
I
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 59

A • David Chiu (Deacon Sr’s son) has been in the past arrested and charged
for the same offenses as Deacon Sr. He also faced charges of conspiring to
falsify documents purporting to show that more than $246 million in credit
facilities had been granted to the bank by various companies.
And now the climax to this family saga:
B • The same don (David Chiu) is the Founder and Chairman of Mayland!!!
Mayland has been convicted of Fraud and Misrepresentation against W&W owners:
At High Court level
At Court of Appeal level
At Federal Court level
C
The apple doesn’t fall far from the tree ...
Please google these names to read more.
*the same son (emphasis added)
[15] The defendant almost immediately corrected the word “don” which
D appeared in the first version of the impugned text to read as “son”. During
the trial, the plaintiff accepted that the word “don” was a typographical error
and that it should read as “son”. Thus, there is no basis for the plaintiff to
say that the defendant had sought to portray the plaintiff as a “don” which
is a euphemism for “head of a mafia” or the head of a criminal enterprise
E or organisation.
Defamation – Ordinary And Natural Meaning
[16] The plaintiff pleaded that the impugned text, in its ordinary and
natural meaning, meant and was understood to mean that:
F (i) plaintiff is a fraudster;
(ii) plaintiff is a fraudster because of his family heritage;
(iii) plaintiff is dishonest and untrustworthy because of his family heritage;
(iv) plaintiff has been convicted of fraud;
G
(v) plaintiff has committed fraud against W&W owners;
(vi) plaintiff has misrepresented to W&W owners;
(vii) plaintiff was convicted of fraud at the High Court level;

H (viii) plaintiff was convicted of fraud at the Court of Appeal level;

(ix) plaintiff was convicted of fraud at the Federal Court level; and
(x) plaintiff is a Don and is associated with the criminals or underworld.
Defamation – Innuendo Meaning
I [17] The plaintiff further pleaded that the impugned text, by way of
innuendo, was to be understood to mean that:
(i) plaintiff is dishonest and untrustworthy;
60 Current Law Journal [2023] 6 CLJ

(ii) plaintiff has committed fraud and misrepresentation; A

(iii) plaintiff comes from a family of fraudsters or criminals;

(iv) plaintiff was convicted because of fraud committed against W&W
owners;
(v) plaintiff was convicted because of misrepresentation against W&W B
owners; and
(vi) plaintiff has served jail time.
Reliefs
C
[18] In the statement of claim, plaintiff prayed for the following reliefs:
(i) damages of RM1.5 million or general damages including aggravated
damages to be assessed;
(ii) an order that defendant publishes an apology in leading Chinese
newspaper, English newspaper and Bahasa Malaysia newspaper for a D
period of 14 days consecutively; and
(iii) an injunction to restrain the defendant from publishing or spreading the
impugned text or similar defamatory words.
Defence E

[19] The defendant’s defence was that the impugned text was not
defamatory of the plaintiff.
[20] And if it is defamatory, then the defendant pleads that (i) the same was
justified and/or based on information that was available in the public F
domain, (ii) made in good faith, not in malice, (iii) made as a matter of fair
comment in the interest of the participants of the WhatsApp group and/or
that it was published on an occasion of privilege and for the benefit of the
participants in the WhatsApp group.
[21] In so far justification is concerned, the defendant pleaded at para. [9] G
of the re-amended defence as follows:
(i) the Chiu family is indeed an extremely rich and successful family
originating from China, then based in Hong Kong and who has
businesses in many countries, including Malaysia;
H
(ii) the individuals known as Deacon Chiu (Sr), Duncan Chiu and David
Chiu (the plaintiff) have been arrested and charged with criminal
offences in the past. These offences were, inter alia, in respect of
corporate crimes such as conspiracy to defraud and falsify documents;
(iii) Deacon Chiu (Sr) has indeed been accused in the past of plotting to I
defraud the Commissioner of Banking by making false claims
concerning the ownership of companies to which the bank had made
advances of $352.5 million. Deacon Chiu (Sr) had also faced charges
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 61

A of conspiring to falsify documents purporting to show that more than

$246 million in credit facilities had been granted to the bank by
various companies;
(iv) Duncan Chiu has been arrested for allegedly breaching the theft
ordinance and the companies’ ordinance in the past;
B
(v) the plaintiff comes from the said Chiu family;
(vi) the plaintiff himself had been accused of involvement in the
conspiracy (as pleaded in para. 9(iii) above); and/or
(vii) the plaintiff is the founder and chairman of Mayland. Mayland was
C
found liable for fraud and false misrepresentation against W&W. This
was litigated all the way up to the Federal Court.
[22] The issue is whether what was published was a “half-truth” and
whether it amounts to “no truth” ie, falsity. In Lim Guan Eng v. Utusan
D Melayu (M) Bhd [2012] 2 CLJ 619; [2012] 2 MLJ 394, (at p. 642 (CLJ);
p. 415 (MLJ) Varghese George J (as he then was – later JCA) said:
Half truths are no truth at all and definitely bear out an intention to
deliberately mislead and malign unfairly the party who was the subject of
such statement, in this case, the plaintiff.
E [23] The defendant maintains that her focus was on Mayland and that the
words in the impugned text referring to the plaintiff are true as the plaintiff
himself had, in the past, been arrested and charged for criminal offences,
which was publicly reported both in the press and through Hong Kong legal
journals which was used by the defendant as the source of her text. The
F defendant pleaded the defence of justification, qualified privilege and fair
comment.
Defamatory Test
[24] The test for determining whether the words appearing in the impugned
G
text are defamatory may be seen from the decision of Harminder JC
(now FCJ) in Dato’ Seri Anwar Ibrahim v. The New Straits Times Press (M) Sdn
Bhd & Anor [2010] 5 CLJ 301; [2010] 2 MLJ 492, [2009] MLJU 1353,
[2010] 3 AMR 514 (HC) where the learned judge referred to the principles
in the following paragraphs:
H [13] The Defamation Act 1957 is silent on what constitutes defamatory
matter. The courts have followed closely the law in England. Even then
there is no single, uniform or comprehensive definition of what
constitutes defamatory matter.
[14] In Syed Husin Ali v. Sharikat Penchetakan Utusan Melayu Berhad & Anor
[1973] 2 MLJ 56 at p. 58, Mohd Azmi J (as he then was) set out the
I
defamatory test as follows:
62 Current Law Journal [2023] 6 CLJ

Thus, the test of defamatory nature of a statement is its tendency A

to excite against the plaintiff the adverse opinion of others,
although no one believes the statement to be true. Another test
is: would the words tend to lower the plaintiff in the estimation
of right-thinking members of society generally? The typical type of
defamation is an attack upon the moral character of the plaintiff
attributing crime, dishonesty, untruthfulness, ingratitude or B
cruelty.
[15] In Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v. Bre Sdn Bhd & Ors
[1996] 1 MLJ 393, Richard Malanjum J (as he then was) followed
JB Jeyaretnam v. Goh Chok Thong [1985] 1 MLJ 334 and adopted the
following approach: C
As to whether the words complained of in this case were capable
of being, and were in fact, defamatory of the plaintiff, the test to
be considered is whether the words complained of were calculated
to expose him to hatred, ridicule or contempt in the mind of a
reasonable man or would tend to lower the plaintiff in the D
estimation of right-thinking members of society generally.
[16] The Court of Appeal also had occasion to deal with this issue in
Chok Foo Choo @ Chok Kee Lian v. The China Press Bhd [1999] 1 MLJ 371
at p 374. Speaking for the Court, Gopal Sri Ram JCA (as he then was)
said:
E
In my judgment, the test which is to be applied lies in the question:
do the words published in their natural and ordinary meaning
impute to the plaintiff any dishonorable or discreditable conduct or
motives or a lack of integrity on his part? If the question invites
an affirmative response, then the words complained of are
defamatory. F

...
[20] The defamatory nature of an imputation also cannot be judged in
isolation. It has to be ascertained by reference to the moral or social
standards of society generally. This is an important part of the
consideration of what constitutes defamatory matter. Such societal G
standards are not amenable to evidentiary proof. It will be up to the judges to consider
the requisite standards when determining whether a matter is either capable of being
defamatory or is in fact defamatory. The case law suggests that the standard
that is usually adopted is that of ordinary reasonable people (see Jones v. Skelton
[1963] SR (NSW) 644) who are of fair average intelligence (see Slatyer v.
H
Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at p 7) but who are not
avid for scandal (see Lewis v. Daily Telegraph Ltd [1964] AC 234 at p 260).
This person may engage in some degree of loose thinking (see Morgan
v. Odhams Press Ltd [1971] 2 All ER 1156 at p 1162) or reading between
the lines (see Farquhar v. Bottom [1980] 2 NSWLR 374 at p 380) but he or
she should not be unduly suspicious (see Keogh v. Incorporated Dental I
Hospital of Ireland (1910) 2 Ir R 577). As such, an ordinary reasonable person
would presume that a man is innocent until proven guilty although the reality might
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 63

A sometimes be otherwise. This is necessary to protect the media who go no further than
merely to report that a person is being investigated by police or has been arrested and
charged with a criminal offence.
...
[29] The sting of these statements was to show that the plaintiff had
B abused his political position for personal gain. Ordinary right-thinking
members of society will think that here is a person with no integrity,
dishonest, corrupt and an untrustworthy leader and politician. It is safe
to conclude that the effect of the article would certainly lower the plaintiff
in the estimation of ordinary, right-thinking members of Malaysian
society. There would certainly be some degree of hatred, contempt or
C
ridicule. I was therefore persuaded that the impugned article was indeed
defamatory. (emphasis added)
High Court
[25] As stated earlier, the JC held that the impugned text was not
D defamatory of the plaintiff. The following parts of the JC’s grounds of
judgment deal with the issue whether the impugned text is defamatory and
they read as follows:
[22] I find that the impugned text is not defamatory of P when read in
totality and as a whole. The natural and ordinary meaning or imputation
E of the impugned text is that:
(a) there are a number of individuals in the Chiu family, including P,
who have been arrested and charged for alleged or purported crimes;
(b) this was in the past;
(c) P is the founder and Chairman of Mayland;
F
(d) Mayland has been found guilty of fraud and misrepresentation
against W&W owners by the Malaysian courts.
[23] The aforesaid was stated as a matter of listed and observable facts,
divorced from emotion or speculation. And D went no further than that.
Hence I conclude that no defamatory imputation can be accorded to the
G
impugned text.
[24] I am of the opinion that the impugned text does not, expressly or
impliedly, convey the meanings pleaded by P:
(a) The words “fraud”, “fraudster”, “dishonest”, “untrustworthy”,
H “misrepresented”, “convicted” or any other words inferring the like
were never used in relation to P. There is no imputation that P has
served jail time because of conviction. The impugned text only
conveys the meaning that Mayland was found guilty of fraud and
misrepresentation against W&W owners.
(b) The impugned text conveys that three persons from the same family
I
have been arrested and charged in the past. But this cannot mean
that P is a fraudster or criminal by heritage. A reasonable reader
would not believe or give credence to the imputations alleged by P.
To do so would be a fallacy and unnatural leap in logic.
64 Current Law Journal [2023] 6 CLJ

(c) The word “don” was mentioned initially. But it was a typo and A
immediately thereafter corrected to “son”. A reasonable reader
would understand and know this. The words “criminal” or
“underworld” were never mentioned, nor can it be inferred.
[25] D explained that she had used an asterisk (*) to correct the word “the
same don” to “the same son” as soon as she realised the misspelling. This B
is a common way of correcting a misspelling on WhatsApp. The letters “s”
and “d” are next to each other on the mobile phone keypad used in the
WhatsApp application. I believe this explanation which sounded plausible.
Moreover, the correction was done in the space of a minute. Namely at
10:16 p.m. The initial message was sent at 10:15 p.m.
C
[26] Actually, P and his counsel conceded this point during cross-
examination:
Q: ... My question is, do you agree with my suggestion that the
asterisk followed by the words, “the same son” is there to correct
the phrase “the same don”. Or you don’t know?
D
A: I think so, yes.
Q: Ok, so you agree?
A: Yes.
A: Yes, I’m the same son. Yes, yes. Ok.
E
Q: Ok, so he’s agreed to it. It’s a correction.
P/C: Yang Arif, just for the record, there’s no dispute to that. There’s
no dispute to that.
[27] The impugned text was reproduced in the SOC and in P’s witness
statement (at Q&A 17) in its incomplete form. Namely, without the F
correction in asterisk of “don” to “son”. This unduly skews and colours
the perception of the impugned text. Without “don”, there can be no
potential imputation of P being a criminal in the underworld.
[28] Throughout the impugned text, clear words were used to distinguish
P’s arrest and charges, and the finding of fraud made against Mayland. G
When speaking of P, D’s words were “in the past arrested and charged”,
“faced charges” and “purporting”. This is to be distinguished from the
wording used when it comes to Mayland which were “has been convicted
of fraud and misrepresentation”.
... H
[29] The dichotomy of the wording must be taken into account as P was clearly
referred to in a way that was different and distinguishable from Mayland. Hence
any imputation of fraud, dishonesty, untrustworthiness, misrepresentation, conviction
and such like can only be in respect of Mayland, if at all. By virtue of the dichotomy,
it cannot be in respect of P.
I
...
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 65

A [32] In my view, the ordinary and natural meaning and innuendo meaning of the
impugned text does not impute to P a conduct which is dishonourable or discreditable.
It does not tend to lower P in the estimation of right-thinking members of society
generally. It does not expose P to ridicule, contempt or hatred. Accordingly, my
conclusion is that P has not proven, on a balance of probabilities, that the impugned
text is defamatory of him.
B
Second element — Whether the impugned text refers to plaintiff
[33] Admittedly, the impugned text refers to P. The fourth bullet point
stated that P (Deacon Sr’s son) has been in the past arrested and charged
for the same offences as Deacon Sr. The fifth bullet point stated that the
same “son” is the founder and Chairman of Mayland. But as discussed
C
earlier, those words are not defamatory of P.
[34] I accept D’s explanation that the focus of her WhatsApp text was on
Mayland. The WhatsApp group was a private group chat operated in a
protected setting. Its purpose was to spread information and awareness
of issues and events concerning W&W between W&W owners. There
D was discussion, feedback and exchange of updates, concerns, opinions,
critique, information and documents between the participants.
[35] The matters discussed in the WhatsApp group were, amongst others:
(a) maintenance and management of W&W, (b) its MC (management
corporation), (c) financial and legal matters of W&W, (d) issues affecting
E W&W or the owners of W&W, (e) raising awareness and rallying the
support of the owners of W&W in respect of W&W issues and to
participate in AGMs and meeting with the MC, (f) concerns about the
possible mismanagement of owners’ funds by the MC, (g) concerns about
the possible violations of the Strata Management Act by the MC, and (h)
suggestions and solutions on how best to resolve W&W issues. This is
F evident from the thread of messages in the WhatsApp group contained
in the bundle of documents.
[36] P complains that the statement “Mayland is the Chiu family” is
factually wrong. Because in the Chinese context, Chiu family includes all
his siblings and relatives amounting to about 200 people. According to P,
G a more accurate description would have been “Mayland is David Chiu
and family”. That may very well be so but I think it is quite irrelevant as
the said statement, in any event, is not defamatory.
[37] Next, P takes offence at the statement “Mayland has been convicted
of Fraud and Misrepresentation against W&W owners”. However, that
statement does not refer to P but rather to Mayland. And Mayland is not
H
the plaintiff here.
[38] As the words referring to P are not defamatory, I find, on a balance
of probabilities, that P has failed to prove his case for defamation against
D.

I
66 Current Law Journal [2023] 6 CLJ

[26] As for the half-truth issue, the JC said that it was untenable. The JC’s A
reasoning may be gathered from the following paragraphs from the grounds
of judgment:
[84] P’s argument of “half-truth” is untenable. Malaysian case laws show
that when an allegation is made, an ordinary reasonable reader would
understand it to be just an allegation. Stating that P was in the past B
arrested and charged, which fact and imputation are true, cannot
constitute defamation.
[85] At worse, D might perhaps be said to have been robust and
overzealous in sending the impugned text without disclosing that the
charges against P were withdrawn. But I think that is mitigated by the C
disclaimer which invited the readers to do their own research and find out
more. Furthermore, robust and even outrageous statements do not
negate the fair comment defence.
[27] In so far as dragging the plaintiff into the impugned text is concerned,
the JC said there was a need to raise awareness and for the W&W owners D
to be informed of the “players” in the Mayland litigation. In this regard, the
JC said:
[61] Because of the litigation in which Mayland and its related entities
have interests antithetical to W&W owners, there was a need to raise
awareness of who and what Mayland was. Particularly in the light of an E
impending EGM in which collective action of owners would be required.
It therefore is a matter of interest, rather than disinterest, for W&W
owners to know the players in the litigation matters involving W&W and
W&W owners’ interests.
Discussion
F
[28] We shall start with the issue of malice as our finding on this part of
the case will deal with the defence of qualified privilege and fair comment.
Thus, assuming that the impugned text was defamatory, the JC concluded
that there was no malice on the defendant’s part which would have defeated
the defence of qualified privilege and fair comment. In law, a person would G
be regarded as being actuated by malice if he was reckless or indifferent to
the truth. The judgment of Lord Diplock in Horrocks v. Lowe [1975] AC 135
at p. 150 is instructive on this point. Lord Diplock said:
if he publishes untrue defamatory matter recklessly, without considering
or caring whether it be true or not, he is in this, as in other branches of H
the law, treated as if he knew it to be false.
[29] In S Pakianathan v. Jenni Ibrahim & Another Case [1988] 1 CLJ 771;
[1988] 1 CLJ (Rep) 233; [1988] 2 MLJ 173, Wan Hamzah SCJ (as he then
was) discussed the topic of malice in the following terms:
Where the defendant purposely abstained from inquiring into the facts or I
from availing himself of means of information which lay at hand when
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 67

A the slightest inquiry would have shown the true situation, or where he
deliberately stopped short in his inquiries in order not to ascertain the
truth, malice may rightly be inferred.
[30] Here, the defendant was fully aware that the plaintiff was “acquitted”
of the charges of financial misconduct and that these events occurred at least
B two decades ago. There was no rhyme or reason for the defendant to have
“raked” up the plaintiff’s past in connection with the arrest and charge,
which ultimately resulted in an acquittal. The defendant was adamant that
she was “not reckless” when she wrote the impugned text. We do not think
that this was a case of recklessness. Rather, it is a case where the defendant
C was fully aware that the plaintiff had been acquitted of the charges involving
financial misconduct but she chose not to disclose this to the participants in
the WhatsApp group.
[31] She painted only “half” the picture. She said that she asked the
participants to look it up themselves. We do not think that such a disclaimer
D will exonerate the defendant from liability for defamation as she, being the
author of the impugned text, must take responsibility for its contents.
[32] It is quite apparent that the defendant deliberately chose not to
disclose the fact that the plaintiff had been acquitted of the charges of
financial misconduct. Therein lies the element of malice on the defendant’s
E part. It is clear and obvious that non-disclosure of the plaintiff’s acquittal was
deliberate and this was hardly “fair” to the plaintiff.
[33] Thus, having regard to the totality of the facts and circumstances, we
are inclined to agree with the submissions that were made on behalf of the
plaintiff that the defendant had displayed an indifferent attitude which
F
significantly warranted an inference of malice. In the circumstances, our
finding of malice on the defendant’s part demolishes the defence of qualified
privilege and fair comment.
[34] Before we leave this topic, we feel it is necessary for us to deal with
G one aspect of the defence of qualified privilege and it is this. The defendant
said that her focus was on Mayland and that she brought in the plaintiff and
his family so that the participants of the WhatsApp group can make up their
own minds.
[35] Of course, there was a need for discussion on the Mayland litigation
H and Mayland’s corporate misconduct, but how does the fact that the plaintiff
was arrested and charged more than 20 years ago become relevant and
necessary for purposes of discussion within the WhatsApp group, especially
since he was acquitted more than two decades ago? We do not see any
permissible or legitimate purpose for disclosing the facts pertaining to the
I arrest and charge which took place more than 20 years ago.
68 Current Law Journal [2023] 6 CLJ

[36] What we do see is that, the facts pertaining to the arrest and charge A
against the plaintiff, were carefully juxtaposed with the judicial findings of
fraud and misrepresentation against Mayland and this was a clear and
unmistakable invitation to the participants of the WhatsApp group to equate
the plaintiff with Mayland, and to reasonably form the view that the plaintiff
is dishonest, and a fraudster with a criminal heritage. B

[37] In the circumstances, the only relevant and remaining question is

whether it is defamatory to publish a statement that the plaintiff was arrested
and charged for an offence concerning financial misconduct when it was
known to the defendant that the plaintiff had been acquitted several years
earlier? Here, the impugned text was circulated on 17 August 2018 when the C
plaintiff’s arrest (and that of his father) took place in the late 1980s and both
were acquitted in around 1996. These are facts which were in the public
domain and were known to the defendant before she sent the impugned
message.
D
[38] The defendant did her research and was apprised of the fact that the
plaintiff and his father were acquitted of the offence with which they were
both charged in Hong Kong. She was not mistaken about the status of the
criminal proceedings against the plaintiff. She knew that the plaintiff had
been acquitted. However, the fact relating to the plaintiff’s acquittal was not
mentioned in the impugned text. E

[39] In cross-examination, the defendant claimed that she was “fair” and
not reckless when she wrote about the plaintiff. The defendant said that
whilst she did not mention that the plaintiff was acquitted, she also never said
that he had been convicted.
F
[40] As to why she even mentioned the plaintiff in the impugned text, the
defendant’s answers may be gathered from the following parts of her
testimony when she was cross-examined by Dato’ Seri Gopal Sri Ram who
had conducted the trial and argued the appeal on 15 December 2022.
However, regrettably, Dato’ Seri Gopal Sri Ram passed away on 29 January
G
2023. The defendant’s testimony was as follows:
GSR No, no. Are you now saying that your, your WhatsApp was a
fair statement to David Chiu?
SEEMA Fair comment, yes.
H
GSR It was fair?
SEEMA Yes.
GSR But it was not true.
SEEMA Everything I wrote was true.
I
GSR So do you agree with me that if you had included that, that
would have been a fairer statement to him?
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 69

A SEEMA I disagree. Because I said Google this to read more.

GSR No, no. So you left the reader to look out for himself.
SEEMA I wasn’t providing any full story. I was just giving some facts. My focus
was on Mayland.

B SEEMA ... It was all about Mayland and what happened in W&W condo.
So I just mentioned certain, certain things in the history of the Chiu family
and I wanted the owners to make up their own minds that, google it, read
up for yourself. They’re all intelligent people.
[41] No doubt the defendant had inserted a disclaimer “Please Google
C these names to read more” at the end, whereby she had urged the
WhatsApp group chat participants to find out more and inform
themselves of matters concerning W&W. She said that the impugned text
was not meant to be any full account of W&W matters.
[42] In response, counsel for the plaintiff argued before us that there is no
D duty on the part of the reader to conduct research to ascertain the truth. Thus,
if the impugned publication consists of a “half-truth” which gives an untrue
or false impression of the plaintiff, then the defendant is liable for having
published a false statement of and concerning the plaintiff.
[43] As far as the JC was concerned, his findings were that the impugned
E text was not defamatory when read in totality and as a whole. The JC opined
that upon considering the wordings of the impugned text in totality and as
a whole, the natural and ordinary meaning or imputation of the impugned
text in the eyes of an objective reader was not defamatory, and instead meant:
(i) that a number of individuals in the Chiu family, including the plaintiff,
F
have been arrested and charged for purported crimes;
(ii) that this was in the past;
(iii) that the plaintiff is the founder and chairman of Mayland; and

G
(iv) that Mayland has been found guilty of fraud and/or false
misrepresentation against the owners of W&W.
[44] The JC held that, in any event, the defendant’s pleaded defence of
justification has been proven on a balance of probabilities. The JC also held
that, in any event, the defendant’s pleaded defence of fair comment has been
H proven on a balance of probabilities. According to the JC, there was no
malice on the part of the defendant.
[45] It was submitted for the defendant that the JC had properly and
correctly looked at the words used and noted their meanings:
(i) throughout the impugned text, clear words were used to distinguish the
I
fact of the plaintiff’s arrest and charges vs the finding of fraud and
misrepresentation made against Mayland;
70 Current Law Journal [2023] 6 CLJ

(ii) when the impugned text was about the plaintiff, the defendant used clear A
words such as “has been in the past arrested and charged”, “faced
charges” and “purporting” and this is to be distinguished from the
wording the defendant used when the impugned text was about
Mayland, such as “has been convicted of fraud and misrepresentation”;
B
(iii) the clear dichotomy of the words used between arrested and charged and
purporting vs convicted shows the different treatment in the subject of
the plaintiff and Mayland; and
(iv) the plaintiff was clearly referred to in a way that was different and
distinguishable from Mayland, hence any imputation of fraud, C
dishonesty, untrustworthiness, misrepresentation, conviction and such
can only, if at all, be attributed to Mayland, not the plaintiff.
[46] Thus, the JC agreed with and accepted the defendant’s testimony that
there was a distinction between those parts of the impugned text which
referred to Mayland and those concerning the plaintiff. According to the D
defendant, the average reasonable reader, not avid for scandal would suspect
but would not conclude that the plaintiff was guilty of fraud,
misrepresentation or dishonesty.
[47] In our view, the JC erred in accepting the defendant’s explanation that
there was a so-called “dichotomy” in the way in which the plaintiff and E
Mayland were described. No doubt different words were used by the
defendant in describing the plaintiff as compared with Mayland. But it would
be wrong to dissect the impugned text and to view the statements in isolation.
[48] What must be done is to view that impugned text as a whole. And the
impugned text as a whole gives the clear impression that the plaintiff is F
guilty, liable for, or predisposed to dishonesty, fraud or misrepresentation.
Therein lies the “sting” of the impugned text.
[49] It is relevant to mention that, on 27 August 2017, Curtis, qua
administrator of the WhatsApp group removed the defendant from the
G
WhatsApp group and rebuked her in the following words which were posted
in the WhatsApp group:
Seema you have knowingly posting false and misleading information on this chat
group and when questioned have refused to take responsibility.
I’m not going to take any time explaining to you other than to say your H
contributions are not constructive and take advantage of the group
members’ lack of knowledge about our current situation.
I cannot allow you or anyone to continue a campaign of misinformation.
Notice to all:
I
Verify what you post and take responsibility for it. The people on the chat
depended on this information to make intelligent decisions.
(emphasis added)
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 71

A [50] Of course, we cannot say anything more about the defendant’s removal
from the WhatsApp group or as to what had motivated Curtis to do what he
did since he did not testify. But it is clear that the impugned text was causally
connected to the defendant’s removal from the WhatsApp group.
[51] The defendant consistently maintained that what she said in the
B
impugned text about the plaintiff being arrested and charged is true. It was
argued that she was just reporting the fact that the plaintiff had been arrested
and charged and that this is not to be equated with guilt. According to the
defendant, the average reasonably minded reader, not avid for scandal, will
not conclude that the plaintiff is guilty of the offences for which he was
C charged.
[52] Counsel for the defendant referred to the High Court decision in
Sivabalan P Asapathy v. The New Straits Times Press (M) Bhd [2010] 7 CLJ 885;
[2010] 9 MLJ 320; [2010] MLJU 360 (HC) (“Sivapalan”) where the High
Court had dismissed the plaintiff’s claim for defamation. In that case, the
D
plaintiff who was a self-proclaimed spiritual healer was accused of having
raped one of his disciples. The newspaper article gave details of the alleged
rape incident but they had couched it in such a manner as not to suggest guilt.
[53] The judge in Sivabalan’s case said that the newspaper had merely
E
reported that the plaintiff had been arrested on suspicion of having
committed rape. The judge in Sivabalan’s case said:
[18] To my mind, on plain reading of exh. P1, it becomes clear that the
news report merely makes an allegation of rape, among others, against the
plaintiff as opposed to saying that the plaintiff is guilty of rape and the
several other allegations. This is clear from the heading of the news report
F
by the use of the word “alleges” including the use of the words in the
body of the news report such as “allegedly” (first paragraph), “apparently”
(second paragraph), “suspicion” (third paragraph) and “allegedly” (fourth
paragraph). Thus, the “sting” of the offending news report is that the
plaintiff is merely suspected or alleged to have committed the several acts
referred to and that the police have detained him merely for investigations
G
[54] We do not think that the defendant can say that the impugned text is
just a “mere reporting” and that she could rely on Sivabalan’s case. The
impugned text here was not “mere reporting”. Rather, it was a well-scripted
text with a clear purpose to impugn the plaintiff’s reputation so that the
H participants of the WhatsApp group form the view that the plaintiff and
Mayland are one and the same and that just as Mayland was found liable for
fraud and misrepresentation, the plaintiff too is dishonest and a fraudster as
he had been arrested and charged with offences involving financial
misconduct.
I [55] In The Citizen 1978 (Pty) Ltd v. McBride [2011] 5 LRC 286, the issue
of “half-truth” was discussed by Ngcobo CJ in his dissenting judgment where
he said:
72 Current Law Journal [2023] 6 CLJ

[138] Cameron J upholds the fair comment defence in relation to all but A
the statement that Mr McBride is not contrite.
He holds that the statement that Mr McBride is not contrite for planting
a bomb that killed civilians during the struggle against apartheid is untrue
and, to the extent that it is a comment, that it is not supported by facts
accurately stated. B
As the facts upon which a fair comment is based must be true, the defence
in relation to this statement must fail. I agree. The statement was simply
false. However, I am unable to agree with his conclusion in relation to the statement
that Mr McBride had a dubious flirtation with alleged gun dealers in Mozambique.
This statement is based on a half-truth and is, therefore, also untrue.
C
...
None of the articles that appeared in The Citizen mentioned these facts,
in particular, the explanation that the charges were quashed by the Supreme
Court of Mozambique. Reference to the quashing of the charges was vital
information as it would have enabled the reader to understand why Mr McBride was D
released. The omission of this information, in my view, resulted in the facts relating
to the arrest and release of Mr McBride in Mozambique to be a half-truth. The facts
relating to Mozambique were therefore not accurately stated. (emphasis added)
[56] In MD Mineralsearch Inc v. East Kootenay Newspapers Ltd 209 DLR (4th)
375 (“Mineralsearch”), the British Columbian Court of Appeal held as E
follows:
The trial judge correctly identified the problem, however, that in some cases
a report made up of only true facts may still present an untrue impression. Although
the article contained only the true facts of the conviction, it gave an impression of
the respondent that the trial judge said ‘was misleading and potentially
F
damaging to its reputation’. The respondent’s complaint was not about the
true contents of the article, but the false impression the article gave that
the respondent set out to deceive consumers or potential consumers by
committing a ‘deceptive business practice’. Because the impression created by
the article was false, truth cannot be relied on as a defence. (emphasis added)
[57] Counsel for the plaintiff also referred to the decision of the Indian G
High Court of V Radhakrishna v. Alla Rama Krishna Reddy 2019 Cri LJ 302
where it was held as follows:
Sometimes the media present twisted or distorted news that may contain
an element of truth but also an element of untruth. This, too, should be
avoided because a half-truth can be more dangerous than a total lie. H
(emphasis added)
[58] In Cimolai v. Hall [2005] BCSC 31 para. 173, Justice Holmes opined
that the defence of justification will fail if the overall impression of the
impugned publication is false. The relevant passage from the judgment reads
as follows: I
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 73

A [I]f the overall impression of the publication is false, the defence fails even
if some or even all of the literal words are proven to be true. Half-truths
can be just as damaging as outright falsehoods, and their effect may be
even more severe because they can be more difficult to explain.
(emphasis added)

B [59] But in the present case, the JC ruled out half-truths as forming part of
the Malaysian law of defamation. That finding is at para. 84 of the judgment.
It reads as follows:
84. P’s argument of ‘half-truth’ is untenable. Malaysian case law show that
when an allegation is made, an ordinary reasonable reader would
C understand it to be just an allegation. Stating that P was in the past
arrested and charged, which fact and imputation are true, cannot
constitute defamation.
[60] The question ultimately is whether the impugned text is defamatory
of the plaintiff. We are satisfied that the impugned text is defamatory of the
D plaintiff.
[61] In this regard, we have no doubts that the words in the impugned text
convey to the ordinary man that the plaintiff is dishonest and a fraudster.
That, to our mind, was the real purpose of dragging the plaintiff into the
epicentre of the impugned text.
E
[62] Whilst it was legitimate for the defendant to discuss Mayland’s
conduct, behavior, misconduct or other unlawful activity, the action of the
defendant to equate the plaintiff with Mayland and ascribe or impute
Mayland’s wrongful conduct to the plaintiff by reason of his previous arrest
and criminal charge, of which he was acquitted and which was not mentioned
F in the impugned text, renders the impugned text to be inherently and
egregiously defamatory of the plaintiff.
[63] As Lord Reid said in Lewis v. Daily Telegraph Ltd [1964] AC 234,
[1963] 2 All ER 151, [1963] 2 WLR 1063 (HL) (p. 258 AC) “... more often
the sting is not so much in the words themselves as in what the ordinary man
G
will infer from them, and that is also regarded as part of their natural and
ordinary meaning”. The statement in the impugned text which referred to the
plaintiff which was juxtaposed with the attack on Mayland’s conduct, when
considered in the context of the whole article, in its natural and ordinary
meaning definitely had the tendency to disparage and injure the plaintiff’s
H standing, character and reputation. Those statements definitely had the
tendency to excite the adverse opinion of those within the WhatsApp group
against the plaintiff.
[64] The defendant had knowledge or means of knowledge that the
statement she made about the plaintiff was only a half-truth. This is because
I
she in her own evidence has referred to media. What the defendant did was
merely to insert a so-called “disclaimer” at the end of the posting by asking
the recipients to “Google” these names to read more.
74 Current Law Journal [2023] 6 CLJ

[65] Counsel said that this is nothing more than posting a half-truth and A
asking the readers to look out for themselves, the other half on Google. We
agree. The disclaimer does not give the defendant a free pass such that it
exonerates her from liability for having defamed the plaintiff. It was argued
before us that the defendant cannot be held liable for what she did not write
about the plaintiff. B

[66] In response, we would say, “the logic is superficially attractive; but

the conclusion is suspect’. (See Lord Scarman in Goldsmith v. Sperrings
Limited [1977] 2 All ER 566 (CA) at p. 582). And the reason we have given
short shrift of this part of the defendant’s argument is that the omission to
paint the full picture is the very nature and essence of the concept of C
“half-truth” which establishes liability for defamation in circumstances
where the failure to present the requisite information portrayed a false
impression in the minds of the ordinary person.
[67] As we explained earlier, first, the defendant failed to give the full
D
picture of the plaintiff’s previous legal problems in Hong Kong, and
secondly, the plaintiff’s previous legal problems in Hong Kong being
juxtaposed with the judicial findings of fraud and misrepresentation against
Mayland gave the (false) impression that the plaintiff is a fraudster and is
dishonest. Thirdly, there was no legitimate reason or justification for making
any reference to the plaintiff in the impugned text. It was done for the E
obvious purpose of highlighting Mayland’s unlawful conduct and to equate
the plaintiff with Mayland, and in the process to malign the reputation of the
plaintiff.
[68] Thus, as was stated by the British Columbian Court of Appeal in
F
Mineralsearch (supra), “because the impression created by the article was false,
truth cannot be relied on as a defence.”
[69] Thus, even if the fact that the plaintiff was previously arrested and
charged is true, the defence of justification fails as the impression created by
the impugned text was one of utter falsity. The false impression that was
G
created was that the plaintiff was convicted, was a dishonest person, and a
fraudster.
[70] As we said earlier, the mere mention of the plaintiff’s name in the
impugned text and juxtaposing the plaintiff’s name together with the judicial
findings of fraud and misrepresentation against Mayland had the effect of H
tarnishing the plaintiff’s reputation. In short, the plaintiff was defamed
because the words used in the impugned article which referred to the
plaintiff’s arrest and charge had taken a sinister colour by being associated
with the other words in the same impugned text relating to Mayland.
I
 Tan Sri David Chiu Tat-Cheong
[2023] 6 CLJ v. Seema Elizabeth Soy 75

A Damages
[71] On the issue of damages, it was argued for the defendant that the
plaintiff did not lead evidence on the damages that he had suffered as a result
of the defamatory publication. But it is trite that in libel cases, damages are
“presumed”. See (i) SB Palmer v. AS Rajah & Others [1947] 1 LNS 94; [1949]
B
15 MLJ 6 (HC); and (ii) Dato’ Seri Mohammad Nizar Jamaluddin v. Sistem
Televisyen Malaysia Bhd & Anor [2014] 3 CLJ 560; [2014] 4 MLJ 242 (CA)
at para. 55.
[72] Here, the impugned text was circulated to a limited group – within the
C
W&W WhatsApp group. Since Curtis administered a rebuke to the
defendant about ten days after the impugned text was circulated, it might be
presumed that it was or may have been “deleted”. At any rate, there is no
evidence of any “re-publication”. Taking all circumstances into account, we
think that the plaintiff is not entitled to RM1.5 million damages as pleaded.
As rightly mentioned by the JC, the plea of RM1.5 million in the statement
D
of claim is contrary to O. 18 r. 12 (1A) of the Rules of Court 2012.
Considering the plaintiff’s status as an international businessman and that the
impugned text was not widely circulated and was sent to the participants of
the WhatsApp group, damages in the sum of RM100,000 would be fair and
reasonable to vindicate the plaintiff’s reputation which has been sullied by
E the impugned text.
Outcome
[73] For the reasons as stated above, we find that there are merits in the
appeal as the learned Judicial Commissioner was plainly wrong in holding
F that the impugned text was not defamatory of the plaintiff and in further
holding that the defence of justification, qualified privilege and fair comment
succeeds.
[74] As such, we allowed the plaintiff’s appeal and set aside the Judicial
Commissioner’s said decision dated 23 June 2021 and entered judgment for
G the plaintiff. We awarded damages in the sum of RM100,000 with interest
thereon at 5% per annum from 23 June 2021 until the date of full payment
or realisation.
[75] We also order that a permanent injunction be granted to restrain the
defendant from publishing or spreading the impugned text or similar
H defamatory words of and concerning the plaintiff. As for costs, since the High
Court granted post-trial costs of RM80,000, the same amount should now be
awarded to the plaintiff in addition to the costs of this appeal. We, therefore,
awarded costs of RM100,000 (being RM80,000 (High Court costs) plus
RM20,000 (Court of Appeal costs) which is subject to payment of allocator.
I